Online platform Helpling is not allowed to charge any commission to cleaners
The Subdistrict Court of Amsterdam recently ruled (ECLI:NL:RBAMS:2019:4546) on the role of the platform company Helpling in relation to its users.
There is no employment contract between Helpling and the cleaners who are offered work by (potential) customers on the Helpling platform. This also means that there is no agency work employment contract between the two parties and that Helpling does not post the cleaners to customers. According to the Subdistrict Court, however, Helpling does mediate between the cleaners and customers.
What was the dispute about?
Helpling offers an online platform where cleaners and people who want to outsource cleaning work can find each other. Based on their preferences and the profiles of different cleaners, customers can offer a job to one or more cleaners. The cleaner can then accept or refuse the job. Helpling charges a commission to the cleaner for his role in this respect. A dispute arose between the FNV trade union and Helpling as to how the relationship between Helpling and a cleaner should be qualified. It is particularly important in this context whether there is a relationship of authority between Helpling and the cleaner. To this end, it must be ascertained whether Helpling has the authority to give instructions and directions to the cleaner regarding the execution of the work.
No employment contract between Helpling and the cleaner
According to the Subdistrict Court, there is no such relationship of authority between Helpling and the cleaner. Although Helpling gives tips on how the cleaning work can be carried out, this does not mean that a relationship of authority exists. The same applies to the fact that Helpling offers facilities to send invoices, manage the agenda, have contact with the customer and that under certain circumstances it can block the account of a user. After all, the cleaner can carry out the work at his own discretion at a time of his own choosing, decideon the remuneration he wishes to receive, and the cleaner is required to follow the instructions of the customer where he is working. It has not become apparent that the cleaner has other obligations towards Helpling than to comply with the general terms and conditions for the use of the platform's facilities. Furthermore, a cleaner is free to accept or reject an offer from a customer or to agree with the customer that the work will be carried out at another time. Since there is no relationship of authority between Helpling and the cleaner, there can be no employment contract between the two. In addition, due to the absence of an employment contract, the collective labour agreement for cleaning and window cleaning companies (cao Schoonmaak- en Glazenwassersbedrijf) does not have to be applied by Helpling.
Also no agency work employment contract and no posting of workers
The FNV also argued that there was an agency work employment contract. However, the fact that the relationship between the parties involved does not qualify as an employment contract means that there can be no agency work employment contract either. The existence of an employment contract is in fact a condition for the existence of an agency work employment contract. With regard to posting as referred to in the Waadi (Placement of Personnel by Intermediaries Act), it should also be noted that, for this to be the case, no employment contract may exist between the cleaner and the client. According to the Subdistrict Court, however, there is an employment contract between the cleaner and the client, so that Helpling's service provision cannot be regarded as posting.
Helpling does mediate between the cleaners and clients
The Subdistrict Court ruled that Helpling does actively mediate between the cleaners and customers in order to establish an employment contract between them. On the basis of the Waadi, Helpling is not permitted to ask the cleaner for a compensation in return. The commission charged by Helpling to the cleaners is therefore in violation of the law. Helpling is not required to refund the commissions charged in the past, but is required to modify its system within one month of the ruling.
In this judgement, the Subdistrict Court clarified the qualification of the relationship between the Helpling platform and the service-providing user. There is no employment contract with Helpling, at least not for this specific cleaner. However, it is clear that in such platform constructions the payment prohibition in the Waadi must be complied with, since the platform company plays a mediating role. This can probably be overcome by charging the commission not to the cleaners, but to the customers of the cleaners in question.